USCIS Policy Memo Gives Full Discretion to Officers to Deny Petitions and Applications Without RFE If Initial Evidence Fails to Qualify

July 13, 2018

Today, the USCIS issued a policy memorandum that provides guidance to USCIS adjudicating officers that if all required evidence to establish eligibility for a benefit (for example, H-1B status/extension, L-1 status/extension, permanent residence) is not submitted with the initial benefit request, they may in their discretion deny the benefit request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). Furthermore, if additional issues are raised following a response to an RFE, the adjudicating officers are permitted to issue a secondary RFE. This guidance goes into effect on September 11, 2018 and applies to all applications, petitions and requests received after that date.

According to the USCIS Director, the new policy “will discourage frivolous filings and skeletal applications used to game the system, ensure our resources are not wasted, and ultimately improve our agency’s ability to efficiently and fairly adjudicate requests for immigration benefits in full accordance with our laws.”

In the past year, the USCIS rate of issuing RFEs rose substantially following issuance of the Buy American Hire American (BAHA) Executive Order which called for protection of U.S. worker jobs and wages when adjudicating visa petitions and applications. A large percentage of the RFEs issued in 2017 related to whether an H-1B request was for a specialty occupation, one which requires a bachelor’s degree in a specialized field, even when extensions of status were being requested.

Weaver Schlenger LLP will work with clients to ensure that evidence to meet all eligibility criteria for nonimmigrant visas, immigrant visas, permanent resident status and other immigration benefits is provided at the time of initial filing. This may require documentation up front that was not previously included, to diligently pre-empt any basis for denial.

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